The Fiduciary Theory of Governmental Legitimacy and the Natural Charter of the Judiciary

39 Pages Posted: 26 Sep 2010

Date Written: September 23, 2010


In legal academia, there are various claims as to the proper role of the courts and the standard of review to be employed in evaluating claims of right. These competing judicial philosophies have been the subject of great debate in recent years. Yet underlying these debates is the question of rights and whether men are entitled, in justice, to assurances of personal autonomy, or whether the concept of rights is a mere legal fiction.

In a recent article in the Journal of Law and Philosophy, Evan Fox-Decent argues that individuals are entitled, at a minimum, to certain guarantees of bodily integrity and basic freedoms. He concludes that the State owes her citizens the duty to act in their best interest as a fiduciary because justice will not allow a party to unilaterally assert power over the interests of another unless such authority is exercised to promote those interests. This article builds upon Fox-Decent’s fiduciary theory of governance, offering it as an alternative to social contract theory and a more useful paradigm for conceptualizing the basis and scope of individual rights.

Application of the fiduciary theory, as understood through the lens of classical natural law theory, mandates that government must respect the individual’s right to better his or her own life. As such the fiduciary theory holds that the State must generally forbear on actions which may interfere with the individuals’ liberties and proprietary interests. Accordingly, in defining the scope of rights, the judiciary must not presume a regulation interfering with those interests to be legitimate, but on the contrary must employ an exacting standard of review to ensure that the regulation does not offend the moral basis of the sovereign-citizen relationship.

Keywords: Natural rights, natural law, fiduciary, legitimate, government, judiciary, role of courts, judicial philosophy, legal philosophy, originalism, original intent, Constitution, human rights, due process, property rights, liberty, social contract

JEL Classification: K11, K10, K12, K19, K30, K29, K49

Suggested Citation

Wake, Luke Anthony, The Fiduciary Theory of Governmental Legitimacy and the Natural Charter of the Judiciary (September 23, 2010). Available at SSRN: or

Luke Anthony Wake (Contact Author)

Pacific Legal Foundation ( email )

930 G Street
Sacramento, CA 95814
United States

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